Development – Standard Terms and Conditions

Interpretation

1. In this agreement, unless otherwise specified,
   1. where the word “including” is used, it means “including without limitation,” and where the word “includes” is used, it means “includes without limitation”;
   2. words importing the singular number include the plural and vice versa, and words importing gender include all genders, unless the context requires otherwise;
   3. where the term “Moral Rights” is used, it means and includes any and all so-called “moral rights” or “droits moraux” that may exist, now or in the future, anywhere in the universe, including, in relation to any work or other subject matter, the right to revise or modify it, the right to use it in association with any product, service, cause, or institution, and the right of its author to be associated with it by name or pseudonym or to remain anonymous;
   4. references to formats, media, methods, or technologies that are “now known or later devised” include all such formats, media, methods, or technologies, whether they are foreseeable or in development as of the Effective Date or invented or discovered at any later time; and
   5. references to the “Program” include each and every episode of the Program.
2. The headings used in this agreement, and its division into articles, sections, schedules, exhibits, appendices, and other subdivisions, do not affect its interpretation. References to articles, sections, schedules, exhibits, appendices, and other subdivisions are to those parts of this agreement unless otherwise specified.
3. The monetary amounts described in this agreement are expressed in, and are payable in, Canadian funds. All applicable taxes are in addition to, and are not included in, such amounts. If required by the Income Tax Act (Canada), 25% or the applicable rate, will be withheld on all amounts paid or credited to a non-resident of Canada, unless Producer demonstrates in writing that they qualify for a lower applicable withholding tax rate.
4. The summary sheet in the main body of the agreement (the “Summary Sheet”) is incorporated in and forms an integral part of this agreement.

Bell Media Approvals and Chain of Title

5. Bell Media will have the following review and approval rights in connection with the development of the Program:
   1. the right of final approval over all aspects of the Program, including all writers, researchers, consultants, story editors, directors, digital media consultants, producers, service producers, creative directors, and lead developers (collectively, the “Contributors”) engaged for all phases of the Materials;
   2. the right to review each element of the Materials, the annotated script(s) and chain of title opinion contemplated by subsection 7(b), and any other documentation that is required under this agreement, for:
      1. 1. a period of up to 21 days (or 40 days if the Project is an animated co-production) if subject to the WGC-CMPA (IPA 2024-2027) Independent Production Agreement (‘WGC IPA”) or the 2023 Writers Guild of America Theatrical and Television Basic Agreement (“WGA”); or
         2. a period of up to 90 days for all Materials that are not subject to the WGC IPA or WGA,

      in each case, subject to extension on mutual written agreement of the parties, and to approve, reject, or require changes to any such Materials or documentation.

   Bell Media may give or withhold any approval required under this agreement in its sole discretion.

6. Producer acknowledges and agrees to the following:
   1. If Producer enters into a “pay or play” agreement with any Contributor, Bell Media will have no obligations whatsoever in connection the “pay or play” provision in that agreement if Bell Media withdraws from the development of the Program;
   2. All Contributors must be Canadian unless otherwise approved by Bell Media in writing before those Contributors are engaged;
   3. All Contributor agreements must include a morals clause in the form attached as Schedule “C” that survives expiration of the agreement;
   4. Contributors must comply with any social media guidelines provided by Bell Media;
   5. If any agreement (including Contributor agreements) includes any commitments regarding credits, fees, profit participation and/or future roles in production, such commitments must be approved in advance by Bell Media in writing; and
   6. Producer is exclusively responsible for the payment of any and all union and guild royalties and residuals related to the Materials, if applicable.
7. Producer will deliver to Bell Media, at Producer’s sole cost,
   1. copies of all agreements entered into by Producer in connection with the development of the Program, including writer’s agreements, option agreements, literary rights agreements, life rights agreements, interactive rights agreements, and financing agreements, in each case promptly after entering into that agreement;
   2. as and when requested by Bell Media,
      1. an annotated script or scripts in connection with the Materials,
      2. a chain of title opinion acceptable to Bell Media in form and substance; and
      3. evidence satisfactory to Bell Media that no third party has any right, title, or interest in the Program and there are no outstanding encumbrances other than (i) continuing development credit obligations and/or (ii) repayment of pre-existing development that have been disclosed to and approved by Bell Media
8. Producer will ensure that any and all agreements that Producer has entered into in connection with the underlying rights to the Program remain in full force and effect and do not expire throughout the course of development.

Canadian Content Requirements

9. Producer will ensure that the Program meets all Canadian content requirements set by the Canadian Radio-television and Telecommunications Commission (“CRTC”) or the appropriate governmental agency at the time of development and qualifies for the CRTC Canadian Certification Category specified in the Summary Sheet.

Financing and Costs

10. Producer is responsible for all costs associated with the development of the Program, including, for greater certainty, obtaining all financing necessary for the development of the Program as set out in the Financing Plan. For greater certainty, Bell Media’s responsibility for costs associated with the development of the Program is limited to payment of the Advance in accordance with this agreement.
11. Producer will apply for and maximize financial assistance from all available entities, including the CMF, if available, as may be necessary to finance the Budget as set out in Schedule “B”. However, Producer will not approach any Canadian or non-Canadian broadcaster or other financier in order to secure production financing or complete development, without the prior written consent of Bell Media, at any time Bell Media is involved in the development of the Program or during the Acquisition Period (as defined in section 15).
12. Any and all overages related to the Budget are the sole responsibility of Producer; Bell Media will not be responsible or liable for any such overages unless otherwise agreed in writing. However, Bell Media will share, pro rata, in any underages in the Budget and its total Advance will be reduced accordingly.

Publicity

13. Producer will not release, without the prior written approval of Bell Media, any press announcement, publicity release, paid advertisement, or other information of any kind that refers or relates to Bell Media’s involvement in the development or production of the Program.

Bell Media Rights

14. Bell Media will have the exclusive right, exercisable at any time from the Effective Date until the earlier of (i) the end of the Acquisition Period and (ii) the termination of this agreement pursuant to section 20 (the “Term”), to acquire any or all rights in and to the Program, including the rights in Schedule “D” (the “Bell Media Rights”), with term length, co-terminus rights, profit participation and other terms commensurate with Bell Media’s level of financial participation in the Program and subject to good faith negotiations, and any applicable CMF requirements. Producer will disclose to Bell Media any existing agreements that could potentially restrict, limit or fetter the Bell Media Rights.
15. Once the Program has been fully developed to Bell Media’s satisfaction (including to a polished script, where applicable), Bell Media will have six months for Materials subject to the WGC IPA or WGA and 12 months all other Materials, or longer (if extended pursuant to the terms of this agreement) from the date it confirms acceptance of the final Materials required under this agreement (the “Acquisition Period”) to:
    1. order (i.e. greenlight) the Program and acquire any or all of the Bell Media Rights;
    2. mutually agree with Producer to further develop the Program; or
    3. confirm that Bell Media no longer wishes to proceed with production or further development at the current time and release its interest in the Program to Producer in writing, subject to Bell Media’s ongoing rights under this agreement set out in Section 34.

    If Bell Media informs Producer that it intends to order the Program in accordance with subsection 15(a), the Acquisition Period will be deemed extended for at least 90 days and, in any event, for as long as Producer and Bell Media remain engaged in good-faith negotiation of a long-form licence agreement and Producer makes the arrangements necessary to meet funding deadlines and other exigencies of production and confirms the availability of all financing necessary to fund the production of the Program. If Bell Media informs Producer that it wishes to participate in further development of the Program in accordance with subsection 15(b), the Acquisition Period will be deemed extended for as long as Producer and Bell Media remain engaged in good-faith negotiation of the terms and conditions of that further development.

16. If Bell Media and Producer reach agreement for the acquisition of any of the Bell Media Rights, Producer will
    1. repay the amount of the Advance actually paid to Producer (the “Repayment Amount”) no later than the first day of principal photography of the Program, failing which Bell Media may deduct the Repayment Amount from any payment made by Bell Media to Producer in connection with the Program;
    2. afford Bell Media all usual creative and production approvals in connection with the production of the Program, including approval over each phase of each script; production key cast and creative personnel, including writers, showrunners, directors, and casting director; production company, producers, distributors, and sales agents; budgets, financing, cash flow, completion bond, and assignment and direction; set design, wardrobe, hair and make-up, and wardrobe profile of lead performers; special effects; dailies, rough cuts, fine cuts, and picture lock; composers, music, and final sound mix; credits; and unit publicist, promotion and publicity, product integration and product placement, and third party promotions;
    3. accord Bell Media a full-frame screen credit in accordance with section 24; and
    4. work co-operatively with Bell Media to consider and explore product integration ideas for the Program, provided that such product integration do not undermine the creative integrity of the Program.
17. If Bell Media and Producer fail to reach agreement within the Acquisition Period, Producer may negotiate with others to further develop the Program or for rights similar to the Bell Media Rights, but under no circumstances will Producer enter into any agreement with a third party on terms and conditions that are equally or less favourable to Producer than the terms offered by Bell Media.
18. If Producer decides at any point, during or after the Term, not to further develop or produce the Program or any other content based on the Program or the Materials, Producer will notify Bell Media of that decision and afford Bell Media the exclusive first right of negotiation, exercisable in the sole discretion of Bell Media, to acquire any and all rights in and to the Program (including the Materials and any and all underlying rights) at fair market value to be negotiated by the parties in good faith.

WGA Payments

19. If the Materials are subject to the WGA, Producer will be solely responsible for
    1. any and all residuals, royalties, and other amounts payable to the Writers Guild of America in relation to the Materials and the Program; and
    2. any amounts payable in the event that the WGA determines that the Series Overview Document falls within the WGA definition of “format”.

    For greater certainty, Bell Media will not be responsible for payment of any of these amounts.

Termination

20. Bell Media may terminate this agreement immediately, upon written notice to Producer,
    1. if Producer fails to deliver any of the Materials on or before the dates shown on the Summary Sheet, unless otherwise agreed to by the parties in writing;
    2. at any time within six months after delivery of any element of the Materials that is not subject to the WGC IPA, other than the last such element;
    3. at any time within 21 days after delivery of any element of the Materials that is subject to the WGC IPA, other than the last such element,
    4. at any time within twelve months after delivery of the last element of the Materials that is not subject to the WGC IPA;
    5. at any time within six months after delivery of the last element of the Materials that is subject to the WGC IPA;
    6. If CMF has been allocated to this Program and Producer is unable to reach agreement with the CMF or access the CMF Contribution;
    7. in accordance with Section 15(c); or
    8. if any of the representations or warranties made by Producer in this agreement are or become false or misleading, Producer has failed to disclose any material fact relating to the Program, or Producer breaches or fails to perform any material provision of this agreement and fails to (or cannot) remedy that breach or failure within 15 days after receiving a written request from Bell Media to do so.
21. If Bell Media exercises its termination rights in Section 20,
    1. Bell Media will have no further obligations to Producer, including to advance any portion of the Advance that has not yet been paid or to pay any other additional amounts in connection with the development of the Program;
    2. Producer will account to Bell Media via signed cost report for any unspent portion of the Advance and repay to Bell Media any portion of that unspent amount not already committed pursuant to a contract approved by Bell Media, that is not needed for any development work and expenses pre-approved by Bell Media as part of the Budget incurred prior to the exercise of Bell Media’s termination rights; and
    3. Producer may negotiate with third parties for the further development or production of the Program, or of other content based in whole or in part on the Materials, provided that Producer will:
       1. not enter into an agreement with any third party (including any development or licence agreement) that could in any way be contrary to, impair, limit, diminish or infringe upon the surviving rights of Bell Media under this agreement;
       2. before entering into any agreement with a third party, inform that third party of Producer’s obligations to Bell Media under this agreement; and
       3. require any third party, as a condition of its participation in any further development or production or of the acquisition of any rights in the Materials or the Programs, to assume, in writing, Producer’s obligations to Bell Media under this agreement, it being understood and agreed that such assumption will not relieve Producer of its repayment obligations to Bell Media under this agreement.

Repayment Event

22. It will be considered a “Repayment Event” for purposes of this agreement if Bell Media and Producer are unable to reach an agreement in connection with any of the Bell Media Rights during the Acquisition Period, or if Bell Media terminates this agreement or does not otherwise exercise its rights to acquire the Bell Media Rights, and
    1. Producer produces, or authorizes a third party to produce, the Program or any other content based on or inspired by the Materials; or
    2. Producer licenses or assigns to any third party, directly or indirectly, any rights to the Materials to produce the Program or any other content based on or inspired by the Materials.
23. If a Repayment Event occurs,
    1. Producer will notify Bell Media in writing within no more than five days;
    2. Producer will repay (or cause to be repaid) the Repayment Amount to Bell Media no later than the date that principal photography, key animation, or digital media production begins on the Program or other content based on or inspired by any or all of the Materials, if Producer is involved in that production, or no more than 10 days after Producer receives payment for any licence or assignment contemplated by subsection 22(b) (the “Repayment Date”);
    3. if Producer does not reimburse Bell Media for its Repayment Amount by Repayment Date, then Bell Media will have the right to charge interest calculated at the prime annual rate published by The Toronto-Dominion Bank from time to time as its reference rate for commercial loans made in Canada, in Canadian dollars, plus 1.5%, or the maximum rate allowed by law (whichever is lower), from the Repayment Date until repayment in full of the Repayment Amount; and
    4. Bell Media will be entitled to receive (but, in its sole discretion, may decline) an on-screen credit in accordance with Section 25.

Credits

24. Except as set out in Section 25, Bell Media will be accorded a full-frame screen credit with animated logo (including sound), as supplied by Bell Media, in all versions of the Program as distributed throughout the world, together with a credit in all paid advertising, promotional and publicity material directly or indirectly controlled by Producer, all on terms and conditions to be agreed upon by the parties. Bell Media’s credit will be as follows:

Produced and Developed in Association with
Bell Media

25. If a Repayment Event occurs, Bell Media will be entitled to receive (but, in its sole discretion, may decline) an on-screen credit in the end credits of the Program or, in the case of any digital media productions, a credit on the credit screen in all versions produced of the Program, recognizing Bell Media’s involvement in their development. Bell Media’s credit will be as follows:

Developed in Association with
Bell Media

26. In no event will any Bell Media credit be less favourable to Bell Media, in number of mentions, size, placement and duration, than the credit accorded to any other financial or other third-party participant in the Program. Producer will provide Bell Media with the proposed credit block for each version produced of the Program within a reasonable time to allow Bell Media to review and approve the applicable credits. Bell Media will have the right to change its credit upon written notice to Producer, or Producer’s assignee, before the credits are locked.
27. Producer will ensure that its assignees, licensees, and third-party distributors adhere to all credit obligations under this agreement.

Invoices and Payments

28. Bell Media will use commercially reasonable efforts to pay all invoices within 45 days of receipt and acceptance by Bell Media.
29. Bell Media may set off any amounts payable to Producer under this agreement or any other agreement between the parties against any amounts owed by Producer to Bell Media under this agreement or any other agreement between the parties.

Diversity

30. Producer acknowledges that Bell Media is dedicated to supporting human rights and ensuring equity in the workplace. Accordingly, Producer will use best efforts to foster a safe, respectful, diverse, equitable, and inclusive workplace, free of violence, harassment, and discrimination (a “D&I Workplace”). Producer will also ensure that the Materials and the Program reflect and foster diversity and inclusion, which may include seeking and utilizing input from individuals (including where necessary, outside consultants) who share the characteristics of the people and cultures depicted in the Materials, as applicable.

Producer’s Representations, Warranties, and Covenants

31. Producer represents, warrants, and covenants as follows, to and for the benefit of Bell Media and its licensees and assigns, and acknowledges that Bell Media has entered into this agreement in specific reliance on the following:
    1. Producer is a duly incorporated and validly existing company, in good standing under the laws of its jurisdiction of incorporation, with all necessary power and authority to authorize, execute, deliver, and perform all of its obligations under this agreement and to grant the rights granted in this agreement.
    2. Producer has taken all necessary corporate action to authorize the entering into, delivery, and performance of this agreement, and no such action is in contravention of or in conflict with the articles, by-laws, or resolutions of the directors or shareholders of Producer or with any unanimous shareholder agreements.
    3. Producer has the authority to develop and produce the Program and to grant the rights contemplated in this agreement to Bell Media.
    4. Producer owns or controls, or will own and control before requesting the first instalment of the Advance, all rights in and to the Materials, including all necessary underlying rights, free and clear of any liens, claims, charges, encumbrances, demands, security interests, and other interests of any nature, to the full extent necessary to develop the Program and otherwise to give effect to this agreement.
    5. Producer will ensure that anyone who owns or is entitled to the benefit of any Moral Rights in relation to the Materials or any component of them, including, for greater certainty, any and all works (including musical compositions), sound recordings, and performers’ performances it contains,
       1. has expressly waived all such Moral Rights to the extent required to fully enable Producer to grant all of the rights under this agreement, and
       2. is expressly precluded from instituting, supporting, or maintaining any action on the ground that any exercise of rights under this agreement constitutes an infringement of those Moral Rights.
    6. it has informed Bell Media of any pre-existing product and/or service affiliations that any and all on-air talent may be subject to and/or involved with as at the date of this agreement.
    7. upon execution of this agreement and continuing until the expiry of the Term, it will: (i) consult with Bell Media with regards to any potential future on-air talent product and/or service affiliations; and (ii) obtain Bell Media’s written approval prior to any on-air talent entering into any such affiliations.
    8. Producer owns or controls all necessary rights and options in and to any intellectual property forming part of the Materials, on an exclusive basis, for at least 24 months from the Effective Date.
    9. Producer is not in default under any agreement or other obligation with the CMF, Telefilm Canada, or any other financier or funding agency.
    10. the Program complies with the CMF’s Narrative Positioning Policy, if applicable.
    11. Producer understands the requirements for appropriate and satisfactory delivery of the Materials to Bell Media and accepts all responsibility for satisfying those requirements.
    12. If the Materials will be based upon the life story of a person or persons (the “Life Rights”), Producer has secured, or will secure before requesting the first instalment of the Advance, all necessary rights in and to the Life Rights, on an exclusive basis, for at least 24 months from the Effective Date, and will provide a copy of all relevant agreements to Bell Media.
    13. If the Program will be based on the published literary work (the “Literary Work”), Producer has secured, or will secure before requesting the first instalment of the Advance, all necessary rights in and to the Literary Work, on an exclusive basis, for at least 24 months from the Effective Date, and will provide a copy of all relevant agreements to Bell Media.
    14. Except to the extent Materials are based on Life Rights or a Literary Work, the Materials will be wholly original and will not be based upon any person’s life story or any published or unpublished literary or other work.
    15. Producer will strictly comply with and abide by, on a timely basis, all of the terms and conditions, including those relating to payment of consideration, of each of all underlying rights agreements including option/purchase agreements, life rights agreements, etc.
    16. If the project is required to be a “Gender Balance” production as set out in the Summary Sheet, Producer will ensure that 40% of the total number of paid positions for Producer, Director and Writer are held by individuals who identify as women, as per the CMF Development Guidelines (which includes using commercially reasonable efforts to ensure that Producer’s CMF application includes PERSONA-ID numbers from sufficient key personnel).
    17. If the Project is required to be a “Diverse Community” production as set out in the Summary Sheet, Producer will ensure that:
        1. that the Program qualifies as a “Diverse Community” production as defined by the CMF (which includes using commercially reasonable efforts to ensure that Producer’s CMF application includes PERSONA-ID numbers from sufficient key personnel);
        2. that the production company (approved in advance by Bell Media), maintains full control of the creative, artistic, technical and financial aspects of the Program and meets all other CMF Requirements; and
        3. the Materials and Program comply with the On-Screen Protocols & Pathways as provided by the Indigenous Screen Office, if applicable;.
    18. Producer will produce the Materials in accordance with all applicable collective agreements.
    19. No agreement between Producer and a third party currently do or will contain any provisions that are inconsistent with the terms of this agreement.
    20. No proceedings have been taken or authorized by Producer or, to Producer’s knowledge, by any other person relating to its bankruptcy, insolvency, liquidation, dissolution or winding up.
    21. Producer is registered for HST, GST or QST, as applicable.

Indemnification; Liability

32. Producer will indemnify, defend and hold harmless Bell Media, its affiliates and licensees, and their respective directors, officers, employees, agents, representatives, shareholders, successors, and assigns (collectively, the “Bell Media Indemnified Party”) against any and all third party claims, demands, losses, actions and costs, including reasonable outside legal fees and expenses and other professional costs, incurred or sustained by any Bell Media Indemnified Party based upon or arising out of, directly or indirectly, (a) any matter related to the development of the Program, (b) any inaccuracy, breach or non-fulfilment by Producer of any term of this agreement, or (c) the negligence, wilful misconduct, or fraud of Producer or its personnel.
33. In no event will Bell Media be liable to Producer for consequential, indirect, incidental, exemplary, special, or punitive damages, including any damages for business interruption, loss of profits or revenue, or loss of goodwill, whether arising out of breach of contract, tort or any other theory of liability, or otherwise, regardless of whether such damages were foreseeable and whether or not Bell Media was advised of the possibility of such damages.

Additional Provisions

34. All representations, warranties, and indemnities in this agreement, and any obligations which by their nature are intended to survive the expiration or termination of this agreement including Sections 10-13, 17-19, 21-27, 29, 31-33, 46 and, if applicable, Schedule “E” will survive the expiration or termination of this agreement.
35. No waiver under this agreement is effective unless it is in writing and signed by an authorized signatory of the party waiving its right. Any waiver authorized on one occasion is effective only in that instance and only for the purpose stated, and does not operate as a waiver on any future occasion. No failure or delay, or action or inaction, by Bell Media in exercising any of its rights, remedies, powers, or privileges or enforcing any condition under this agreement, and no extension of any cure period by Bell Media under this agreement, will in any way prejudice or impair any other rights and remedies that Bell Media may have under this agreement. In no event will Bell Media be liable or accountable for any such failure, delay, action, or inaction.
36. Bell Media may exercise any or all of the rights and remedies provided under in this agreement. Such rights and remedies are in addition to, and do not preclude, any other rights and remedies that Bell Media may have at law or in equity.
37. This agreement does not constitute a partnership, joint venture, agency relationship, or any similar relationship between Producer and Bell Media. Neither party will hold itself out contrary to the terms of this section 37 and neither party will become liable for any representation, act, or omission of the other contrary to the provisions hereof.
38. Time is of the essence with respect to this agreement and each and every obligation it contains.
39. Any notices or other communications required under this agreement will be in writing and delivered by e-mail (with proof of transmission), to the parties at the following addresses:
    

    If to Producer:	As set out on the Summary Sheet
    If to Bell Media:	As set out on the Summary Sheet
    With a copy to:	Bell Media Inc. 299 Queen Street West Toronto, Ontario, M5V 2Z5 E-mail: legaldeliverables@bellmedia.ca

    A copy of any notice may also be sent by personal service or by prepaid registered mail addressed in accordance with the above. Any such notice or communication will be deemed to have been given (i) if by personal service or e-mail, on delivery, if delivery is on a business day and otherwise on the next business day following delivery, or (ii) if by prepaid registered mail, on the fifth business day following its mailing. Any party may change its address for notice provided above by giving notice to the other party. During periods of postal strike or lock-out, all notices and communications will be made by personal delivery.

40. Any materials or other items required to be delivered or supplied to Bell Media will be provided to Bell Media at its premises in Toronto, Ontario, or in any other manner specified by Bell Media in its sole discretion.
41. All dollar amounts in this agreement are references to Canadian dollars unless otherwise stated. All payments specified in this agreement are exclusive of any applicable Harmonized Sales Tax (“HST”), Goods and Services Tax (“GST”) or Quebec Sales Tax (“QST”). To the extent applicable, the HST, GST or QST will be paid in addition to the payments made under this agreement.
42. Producer may not assign this agreement, in whole or in part, without the prior written consent of Bell Media and delivery to Bell Media of a fully-executed assignment agreement, acceptable to Bell Media in form and substance, that specifically acknowledges Bell Media’s rights under this agreement (the “Assignment”), together with such other documentation as Bell Media may require in its sole discretion. Notwithstanding the foregoing, Producer may assign this agreement to a single-purpose production company, wholly owned by Producer, for the sole purpose of producing the Program, provided that Producer delivers the Assignment to Bell Media together with a guarantee executed by Producer in favour of Bell Media, acceptable to Bell Media in form and substance, guaranteeing the obligations of the assignee under this agreement. Bell Media may assign this agreement, and may assign or sublicense all rights granted to it under this agreement, without Producer’s consent.
43. This agreement will enure to the benefit of, and be binding upon, the parties and their respective successors and permitted assigns.
44. Each party, upon receipt of notice from the other party, will sign or cause to be signed all further documents, do or cause to be done all further acts, and provide or cause to be provided all reasonable assurances as may be necessary or desirable to give effect to this agreement.
45. If any provision of this agreement is determined to be void or unenforceable by a court or other adjudicative body of competent jurisdiction, that provision will be deemed to have been severed from this agreement and the determination will not result in the nullity or unenforceability of the remainder of this agreement. The parties will negotiate in good faith to replace any invalid, illegal or unenforceable (“Invalid Provision”) with a valid alternate provision, the effect of which comes as close as possible to the Invalid Provision as to give effect to the parties’ original intentions as evidenced by the original terms of this Agreement.
46. The parties will keep any and all Confidential Information (as defined below) strictly confidential and will not disclose it to any other person, other than
    1. on a need-to-know basis to its employees, financial and legal advisors related to the Program, and government or private funding agencies actually advancing funds for the Program;
    2. to the extent necessary to give effect to the terms of this agreement (including disclosure to its directors, officers, employees, contractors and agents, and to financial and legal advisors related to the Program), but only if any person to whom the Confidential Information is disclosed (the “Recipient”) is first advised of, and agrees to maintain, its confidential nature;
    3. to the extent necessary to enforce its rights under this agreement in a court or in a duly authorized arbitration proceeding; and
    4. to the extent required by law or the valid order of a court of competent jurisdiction, but only if before that disclosure, to the extent permitted by law, the party disclosing the Confidential Information (i) gives the other party notice to allow it a reasonable opportunity to seek a protective order or other appropriate remedy, (ii) cooperates reasonably with the other party in its efforts to obtain such order or remedy, and (iii) uses reasonable efforts to obtain reliable written assurance from the Recipient that the terms will be kept confidential.

    For the purposes of this agreement, “Confidential Information” means and includes the terms of this agreement and any other information about the business or operations of either party that would reasonably be expected to be kept confidential, regardless of whether the information is expressly marked or designated as confidential, but does not include information that (i) is or becomes publicly known through no wrongful act of the Recipient, (ii) is received by the Recipient in good faith on a non-confidential basis from a source other than the disclosing party, (iii) was in the Recipient’s possession before its disclosure by the disclosing party, (iv) was independently developed by the Recipient without breach of this agreement, or (v) is explicitly approved for release to a third party by notice from the disclosing party to the Recipient.

47. This agreement represents the entire agreement and understanding between the parties with respect to the subject matter hereof and supersedes all other agreements and understandings between the parties, whether in writing or oral regarding the subject matter hereof. There are no representations, covenants, or other terms other than those set out in this agreement except as noted in the Summary Sheet forming part of this agreement.
48. This agreement will not be amended, modified, or changed except by written instrument duly executed by the parties.
49. This agreement may be signed and transmitted electronically and in any number of counterparts, each of which is an original, and all of which taken together constitute one single document.
50. This agreement is governed by and will be construed in accordance with the laws of Ontario, and the laws of Canada applicable in that province, and the parties hereby attorn to the jurisdiction of the courts of Ontario and all courts competent to hear appeals from those courts.